STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6413

January 6, 1987

RETIREMENT SYSTEM:

Judges retirement system--computation of retirement annuity based upon final salary

A Court of Appeals judge member of the Judges' Retirement System retiring at noon on January 1 of a given year may not receive a retirement annuity based upon a salary increase for Court of Appeals judges effective on February 1 after the date of retirement of the judge.

Honorable James E. O'Neill, Jr.

State Representative

The Capitol

Lansing, Michigan 48909

You have requested my opinion concerning the computation of retirement benefits for retiring Court of Appeals judges under the Judges Retirement Act, MCL 38.801 et seq; MSA 27.125(1) et seq. Your question is:

The annual salary paid to a judge of the Court of Appeals is established by MCL 600.304(1); MSA 27A.304(1), which provides: as follows:

Salaries of justices of the Michigan Supreme Court are established upon the recommendation of the State Officers Compensation Commission in accordance with the provisions of Const. 1963, art. 4, Sec. 12, and MCL 15.211 et seq; MSA 3.255(51). Under the provisions of MCL 600.304(1); MSA 27A.304(1), salaries of judges of the Court of Appeals are automatically set at 96% of the salary awarded to justices of the Supreme Court.

Your question is prompted by the retroactivity provision of MCL 600.304(1); MSA 27A.304(1), which requires that, in the event that the State Officers Compensation Commission awards an increase in salary to the justices of the Supreme Court, a corresponding increase is mandated in the salaries of Court of Appeals judges. Further, this increase in salary, although not effective until February 1 of a given year is, in such event, made retroactive to January 1 of that year.

As your letter observes, a judge of the Court of Appeals retiring at the end of his or her term legally holds office until 12:00 noon on January 1, when his or her successor qualifies and assumes office. See, Const. 1963, art. 6, Sec. 9, and Const. 1963, art. 11, Sec. 2. See also, MCL 168.409e; MSA 6.1409(5). Thus, although January 1 is legal holiday on which a judge of the Court of Appeals would not ordinarily report for work, such a judge, even though retiring upon the expiration of his or her term, technically remains in office for part of January 1. In view of these facts, you have inquired whether a retroactive pay increase awarded pursuant to MCL 600.304(1); MSA 27A.304(1), would become effective as to such retiring judge and whether it would, accordingly, be considered in computing the judge's final salary for purposes of determining retirement benefits.

It is a fundamental rule of statutory constitution that, where the language of a statute is clear and unambiguous, the statute must be applied as written. Dussia v. Monroe County Employees Retirement System, 386 Mich. 244, 248-249; 191 N.W.2d 307 (1971). It is to be presumed that the Legislature intended what its plain language imports. Barstow v. Smith, Walk Ch. 394 (1844).

While a cursory reading of MCL 600.304(1); MSA 27A.304(1), might suggest that such a retiring Court of Appeals judge would be entitled to the benefit of the retroactive pay increase by virtue of having technically remained in office until noon on January 1, a closer reading of that statute reveals that such result is precluded by the plain language of the statute. MCL 600.304(1); MSA 27A.304(1) expressly provides that any increases in salary for a judge of the Court of Appeals "shall not be effective until February 1 of the year in which increase in the salary of the justice of the Supreme Court becomes effective." More significantly, while the statute does make the increase retroactive to January 1 of that year, that retroactivity is subject to the condition precedent that the increase in salary must first become effective on February 1 of the year in question. The statute expressly provides:

Thus, under the express language of MCL 600.304(1); MSA 27A.304(1), the salary increase becomes retroactive to January 1 only if it becomes effective on February 1. If a judge retires at noon on January 1 and is thus no longer in office after that point in time, the February 1 salary increase never becomes effective with respect to such judge and, for that reason, would not be retroactive as to that judge.

It is my opinion, therefore, that an increase in the salary of a Court of Appeals judge which becomes effective on February 1 of a given year pursuant to the provisions of MCL 600.304(1); MSA 27A.304(1), under the express terms of that statute, does not apply retroactively to a Court of Appeals judge who retired effective at noon on January 1 of that same year and who, accordingly, is no longer in office on February 1, the effective date of the salary increase. It is my further opinion that the retirement annuity payable to such judge may not be based upon a salary increase which did not become effective with respect to that retiring judge.

Frank J. Kelley

Attorney General