STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6318

October 30, 1985

RETIREMENT SYSTEMS:

Judges' Retirement System--membership of a former judge assigned to serve on a court

Computation of benefits for former judge assigned to serve on a court

Determination of service credits of former judge assigned to serve on a court

A former judge assigned by the State Court Administrator to serve on either a circuit court, the Recorder's Court of the City of Detroit, or a district court for a period of thirty-one or more days becomes a member of the Judges' Retirement System unless the judge elects within thirty days of assuming the office not to become a member of the retirement system.

The retirement benefit of a former district judge should be computed on the annual state salary received at the time he or she ceased to be a district court judge.

A former judge serving as a judge by assignment of the State Court Administrator may receive credit for a month's service only if the judge received a full salary for that month, except such judge may receive a full month's credit for the month of retirement if the judge received a full salary for the period from the first day through at least the fifteenth day of the month of retirement.

Mr. Richard L. Beers

Executive Secretary

Judges' Retirement System

Stevens T. Mason Building

Lansing, Michigan 48909

You have requested my opinion on three questions relating to the grant of service credit and the computation of retirement allowances under the Judges' Retirement Act, MCL 38.801 et seq; MSA 27.125(1) et seq, for certain persons who ceased being judges and thereafter were authorized by the State Court Administrator to serve for limited periods upon either a circit court, or the Recorder's Court of the City of Detroit, or a district court.

Your letter of request cites the following example:

It is assumed that your questions relate to such former judge who would seek a retirement annuity upon reaching the age of 60 years.

Your first question is:

A letter opinion addressed to Mr. Lawrence L. Farrell, Executive Secretary of the Judges' Retirement System, dated March 24, 1970, concluded:

This conclusion rested upon MCL 38.811; MSA 27.125(11), which then provided in pertinent part:

1982 PA 510 amended MCL 38.811(1); MSA 27.125(11)(1), in pertinent part, to provide:

The Legislature, by enacting amendatory 1982 PA 510, must be deemed to have intended a change in the statute. Lawrence Baking Co v Unemployment Compensation Commission, 309 Mich 198, 205; 13 NW2d 260 cert den, 323 US 738; 65 S Ct 43; 89 L Ed 591 (1944). Although membership in the retirement system remains elective, the method for exercising the election has been substantially changed. The election by the judge is accomplished not by executing a written agreement, but, rather, by refraining from providing written notice of nonparticipation in the Judges' Retirement System within 30 days from the date of taking the assigned office. In the event an assigned judge had previously declined membership, or during the first thirty-one day period of assignment were to elect not to be a member of the system, such judge would be precluded by MCL 38.811(1); MSA 27.125(11)(1), from subsequently becoming a member of the said system during that period of assignment. It follows that membership of the assigned judge in the retirement system is not effected until the thirty-first day of service after assignment by the State Court Administrator.

It should be noted that in the event a former district judge were authorized to serve upon the Recorder's Court of the City of Detroit for a period of ninety days and did not within thirty days after assuming service on the court decline membership in the Judges' Retirement System, upon completion of such ninety-day period of authorized service, the former judge would cease being a judge for the purposes of the Judges' Retirement Act, MCL 38.802(b); MSA 27.127(2)(b), and his or her membership in the system would terminate as provided in MCL 38.812; MSA 27.125(12). Upon receipt of a new authorization to serve as a circuit judge, or a Recorder's Court of the City of Detroit judge, or a district court judge for a period of thirty-one or more days, the former judge will become a member of the Judges' Retirement System, unless within thirty days from taking office a written notice not to participate in the retirement system is filed with the board.

It is my opinion, therefore, that a former judge who has ceased to be a member of the Judges' Retirement System and who is authorized by the State Court Administrator to serve as a judge upon either a circuit court, or the Recorder's Court of the City of Detroit, or a district court for a period of thirty-one days or more becomes a member of the Judges' Retirement System by operation of law unless he or she, within thirty days from entering service as an assigned judge upon a circuit court, or the Recorder's Court of the City of Detroit, or a district court, files a notice not to participate in the Judges' Retirement System.

Your second question is:

Annuity benefits for members of the Judges' Retirement System are to be calculated in accordance with MCL 38.814; MSA 27.125(14), based upon a formula 'equal to 50% of the member's final salary for the first 12 years of service credited to the member's account.' (Emphasis added.) In addition, the member's straight life annuity, terminating upon death, shall be increased by 2 1/2% of the member's final salary multiplied by not more than four additional years of credited service. Optional forms of payment of an annuity for the survivor of the member may be elected as provided in MCL 38.815; MSA 27.125(15).

For purposes of the Judges' Retirement Act, the Legislature has defined in MCL 38.802(m); MSA 27.125(2)(m), the term 'final salary' to mean 'the annual rate of salary paid by the state at the time of . . . retirement to a judge.' (Emphasis added.)

The State Court Administrator has advised that former district judges are authorized to serve upon either a circuit court, or the Recorder's Court of the City of Detroit, or a district court upon the written application of the presiding judge of the court making the request for the service of the former judge. Municipal judges are authorized to serve on the Recorder's Court of the City of Detroit only as provided in MCL 600.225; MSA 27A.225. The typical period of authorized service varies from as brief as one week, to as long as three months. Some former judges, however, have served for a period of one day only.

It is noted that a former district judge authorized to serve upon a circuit court, or the Recorder's Court of the City of Detroit, or a district court receives a salary based upon the salary received by the judges of the court upon which he or she is authorized to serve for each day of service. A former municipal judge authorized to serve in the Recorder's Court of the City of Detroit receives a salary for each day of service based upon the annual salary of judges of the latter court.

The present state salary of circuit court judges is $42,735.00; of Recorder's Court of the City of Detroit judges is $42,735.00; and of district court judges is $38,460.00. These salaries will be increased on January 1, 1986 by approximately 5% as required by MCL 600.555; MSA 27A.555, MCL 725.13; MSA 27.3953, MCL 600.8202; MSA 27A.8202, and 1984 PA 222, Secs. 13-15 as the appropriate percentage of the salary fixed on December 18, 1984 by the State Officers' Compensation Commission for each of the calender years, 1985 and 1986 for the office of supreme court justice as authorized by Const 1963, art 4, Sec. 12.

The current state salary of a district court judge is in contrast with the $18,000 annual state salary paid to district court judges in 1969, by virtue of MCL 600.8202; MSA 27A.8202, as added by 1968 PA 154, the time of original service by the district judge cited in your example. As to former municipal judges, their salaries were paid by the municipalities in which they were elected and served. No state salary was paid to such municipal judges.

Assuming that the former district judge cited in the example, supra, were to serve presently in the Recorder's Court of the City of Detroit by virtue of the authorization of the State Court Administrator, and as a result of such service were to accumulate a total of twelve years of service as a judge, and if MCL 38.814(2); MSA 27.125(14)(2), and MCL 38.302(m); MSA 27.125(2)(m) were read together and given a literal construction, the former judge upon retirement in 1985 may be viewed as eligible for a straight life annuity of 50% of $42,735.00, or $21,367.50, the current annual state salary of Recorder's Court of the City of Detroit judges, a sum in excess of the total salary of the former district judge cited in your example when he ceased to be a judge in 1969.

As observed in Sales v Clements, 399 Mich 103, 109; 247 NW2d 889 (1976), which involved the literal construction of a statute:

See also, Owendale-Gagetown School Dist v State Board of Education, 413 Mich 1, 8; 317 NW2d 529 (1982).

Thus, the answer to your question turns on whether a literal reading of the language in the statutes being considered would produce 'an absurd and unjust result,' one 'clearly inconsistent with the purposes and policies of the act in question.' Salas, 399 Mich at 109.

The legislative purpose of the Judges' Retirement Act is to induce competent and qualified lawyers to enter into, and to remain in, the judicial service of the state. Hughes v Judges' Retirement System, 407 Mich 75, 94-95; 282 NW2d 160 (1979).

The purpose of the Judges' Retirement Act is clearly not to confer a windfall increase in retirement benefits upon former judges who accept appointment for short periods of time after they no longer occupy the office to which they were elected. Manifestly, it would be beyond the purpose of the Legislature to construe MCL 38.814(2); MSA 27.125(14)(2), and MCL 38.802(m); MSA 27.125(2)(m), in a manner which would permit a judge, such as the one in the example, who resigned on January 31, 1969 after one month of service as a district court judge at a salary of $18,000 per year, after an interval of several years, to tack on for retirement benefit purposes, some 10 years of sporadic temporary assignments by the State Court Administrator, equal in tenure to a period materially greater than two elective terms of judgeship and receive the benefit of the ratchet-like escalation in retirement benefits to the end that annual retirement benefits would exceed the total annual salary of the only judicial office ever achieved through the normal political process of election. This absurd and unjust result is inconsistent with the purpose of the statutes and is avoided by a construction of the statutes which is in keeping with the legislative intent.

Based on the foregoing, it is my opinion, in answer to your second question, that the former judges' retirement benefit must be computed on the annual salary received at the termination of his tenure in office as an elected judge.

Your third question is:

MCL 38.810(1); MSA 27.125(10)(1), in pertinent part, provides:

This statute is clear and unambiguous. A plain reading suffices. City of Grand Rapids v Crocker, 219 Mich 178; 188 NW 221 (1922). It applies to all members of the retirement system.

In order for a member to receive credit for a month's service, the member must earn a month's salary as a judge. The only exception is contained in the second sentence in that a month service credit is to be awarded to a member for the month in which the member retires provided that the member retires after the fifteenth day of the month. Such a reading is consistent with the purposes of the Judges' Retirement Act to encourage continued active service by judges. Hughes v Judges' Retirement Board, 407 Mich 75; 282 NW2d 160 (1979). It does not produce an absurd and unjust result inconsistent with the purposes of the Act. Owendale-Gagetown School Dist.

Except for the month of retirement of the former judge authorized to serve by the State Court Administrator, the former judge member must receive a full month salary as either a circuit court judge, or as a Recorder's Court of the City of Detroit judge, or as a district judge in order to receive one month's service credit for that authorized service. The Legislature has not authorized the tacking together of periods of less than a month of actual service so as to gain a month's service credit. Where the date of retirement of a former judge is set after the fifteenth day of the month of retirement, service credit may be awarded for that month, provided that the former judge received a salary for the full period running from the first day to at least the fifteenth day of the month of retirement.

In answer to your third question, it is my opinion that a former judge and member of the the Judges' Retirement System, by virtue of service as a judge by assignment of the State Court Administrator, may receive credit for a month's service only if the judge received the full salary for that month, except that in the month of retirement of the judge, service credit for the month shall be awarded for that month if the judge has received a full salary for the period from the first day through at least the fifteenth day of the month of retirement.

Frank J. Kelley

Attorney General